17 Cal.3d 425, 551 P.2d 334

Vitaly TARASOFF et al., Plaintiffs and Appellants,

v.

The REGENTS OF the UNIVERSITY OF CALIFORNIA et al.,

Defendants and Respondents.

S.F. 23042.

Supreme Court of California,

In Bank.

July 1, 1976.

Action was brought against university regents, psychotherapists employed by university hospital and campus police to recover for murder of plaintiffs' daughter by psychiatric patient. The Superior Court, Alameda County, Robert L. Bostick, J., sustained demurrers without leave to amend, and plaintiffs appealed. The Supreme Court, Tobriner, J., held that when a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim against such danger, that discharge of such duty may require the therapist to take one or more of various steps, depending on the nature of the case, that complaint could be amended to state cause of action against the therapists, to whom patient confided his intentions to kill plaintiffs' daughter, on theory of failure to warn, that therapists were entitled to statutory immunity from liability for failure to bring about patient's confinement but that plaintiffs pled no special relationship between the patient and the police defendants which would impose on them any duty to warn the daughter or other appropriate individuals and that the police were also entitled to statutory immunity for failure to confine the patient.

Mosk, J., filed concurring and dissenting opinion.

Clark, J., filed dissenting opinion in which McComb, J., joined.

Opinion, 13 Cal.3d 177, 118 Cal.Rptr. 129, 529 P.2d 553, vacated.

1. MENTAL HEALTH 414(2)

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

When a psychotherapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another he incurs an obligation to use reasonable care to protect the intended victim against such danger; discharge of such duty may require the therapist to take one or more of various steps, depending on the nature of the case, including warning the intended victim or others likely to apprise the victim of the danger, notifying the police, or taking whatever steps are reasonably necessary under the circumstances. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Complaint alleging that psychotherapists, to whom patient confided his intention to kill another, who knew that patient was at large and dangerous, who were unsuccessful in their attempt to confine patient and who failed to warn the intended victim or persons likely to apprise her of the danger breached their duty to exercise reasonable care in protecting intended victim, would state cause of action for wrongful death of victim. West's Ann.Civ.Code, § 1714.

302 ----

302V Demurrer or Exception

302k219 Operation and Effect of Decision on Demurrer

302k225 Amendment or Further Pleading After Demurrer Sustained

> 302k225(1) In general.

Cal. 1976.

Although complaint seeking to hold psychotherapists liable for death of plaintiffs' daughter at hands of a patient did not allege that the therapists failed to warn the victim herself or failed to warn persons who would be likely to apprise her of the danger, such omission could properly be cured by amendment; hence it was error to sustain demurrer without leave to amend. West's Ann.Civ.Code, § 1714.

379 ----

> 379k3 Right, duty, or obligation violated.

Cal. 1976.

Legal duties are not discoverable facts of nature, but mere conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.

272 ----

272I Acts or Omissions Constituting Negligence

272I(A) Personal Conduct in General

> 272k10 Unintended consequences.

Cal. 1976.

Foreseeability is the most important factor to be considered in a departure from general rule that liability should be imposed for an injury occasioned to another by want of the actor's ordinary care or skill. West's Ann.Civ.Code, § 1714.

272 ----

272I Acts or Omissions Constituting Negligence

272I(A) Personal Conduct in General

> 272k2 Duty to use care.

Cal. 1976.

As a general principle, one owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous. West's Ann.Civ.Code, § 1714.

272 ----

272II Proximate Cause of Injury

272k62 Intervening Efficient Cause

> 272k62(3) Act or omission of third person.

7. MENTAL HEALTH 414(2)

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim; relationship between a psychotherapist and his patient satisfies such requirement. West's Ann.Civ.Code, § 1714.

272 ----

272II Proximate Cause of Injury

272k62 Intervening Efficient Cause

> 272k62(3) Act or omission of third person.

Cal. 1976.

Although at common law, the general rule is that one person owes no duty to control the conduct of another nor to warn those endangered by such conduct, the courts have carved out an exception in cases in which defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. West's Ann.Civ.Code, § 1714.

272 ----

272II Proximate Cause of Injury

272k62 Intervening Efficient Cause

> 272k62(3) Act or omission of third person.

Cal. 1976.

Common-law rule that one person owes no duty to control the conduct of another nor to warn those endangered by such conduct derives from the common law's distinction between misfeasance and nonfeasance and its reluctance to impose liability for the latter. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Relationship of psychotherapist to either the patient, who confided his intention to kill another, or to the intended victim was sufficient to establish a duty of care on part of the therapist to warn the intended victim or take other appropriate action. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(4) Actions.

Cal. 1976.

Allegations that one psychiatrist personally examined patient and that another psychiatrist, who was assistant to the supervising psychiatrist, approved decision to arrange patient's commitment were sufficient to raise issue whether a doctor-patient or therapist-patient relationship existed between the patient and the psychiatrists, giving rise to possible duty of the therapists to exercise reasonable care to protect individual whom the patient had informed the therapists he intended to kill. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Special relationship that arises between a patient and his doctor or psychotherapist may support affirmative duties for the benefit of third persons; hence, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons and a doctor must also warn a patient if the patient's condition or medication renders certain conduct, such as driving a car, dangerous to others; also, a mental hospital may be liable if it negligently permits the escape or release of a dangerous patient. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Although special relationship between a patient and his doctor or psychotherapist may support an affirmative duty for the benefit of third persons, such duty is not limited to situations in which the doctor or psychotherapist stands in a special relationship both to the victim and to the person whose conduct created the danger; single relationship of a doctor to his patient is sufficient to support duty to exercise reasonable care to protect others against dangers emanating from the patient's illness; for example, a doctor may be held liable to persons infected by his patient if he negligently fails to diagnose a contagious disease or, having diagnosed the illness, fails to warn members of patient's family. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Difficulty which a psychotherapist encounters in attempting to forecast whether a patient presents a serious danger of violence is a factor in considering extent of his duty to exercise reasonable care to protect third persons from the patient's violent acts; it is not required that the therapist render a perfect performance, rather, the therapist need only exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the profession under similar circumstances; proof, aided by hindsight, that the therapist judges wrongly is insufficient to establish negligence. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Once a psychotherapist in fact determines, or under applicable professional standards, reasonably should have determined that a patient poses a serious danger of violence to others he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger; while a discharge of such duty of due care will necessarily vary with the facts of each case, in each instance the adequacy of the therapist's conduct must be measured against the traditional negligence standard of the rendition of reasonable care under the circumstances. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Although a therapist knowing, or having reason to know, that a patient poses a serious danger of violence to others has a duty to exercise reasonable care to protect the foreseeable victim, there may be cases in which it would be unreasonable to require the therapist to interrogate the patient to discover the victim's identity or to conduct an independent investigation but, on the other hand, there may be cases in which a moment's reflection will reveal the victim's identity; hence, matter is one which depends on the circumstances of each case and should not be governed by any hard and fast rule. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Professional inaccuracy in predicting violent behavior by a patient cannot negate a psychotherapist's duty to protect the threatened victim; risk that unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved. West's Ann.Civ.Code, § 1714.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Although public interest in effective treatment of mental illness and in protecting patient's right to privacy and the consequent public importance of safeguarding the confidential character of psychotherapeutic communication is not to be lightly disregarded, such factors are to be weighed against the public interest and safety from violent assault in determining a psychotherapist's duty to protect a potential victim from a patient whom the therapist predicts poses a serious danger of violence to others.

257A ----

257AIV Disabilities and Privileges of Mentally Disordered Persons

257AIV(D) Torts

257Ak414 Liability of Others for Torts of Mentally Disordered Persons

> 257Ak414(2) Mental health professionals and institutions.

Cal. 1976.

Although a psychotherapist who knows that a patient poses a serious danger of violence to others bears a duty to exercise reasonable care to protect the foreseeable victim, a therapist is not to be encouraged routinely to reveal such threats since such disclosures could seriously disrupt the patient's relationship with the therapist and with the person threatened; to the contrary, the thereapist's obligations to the patient require that he not disclose a confidence unless necessary to avert danger to others and even then that he do so discreetly and in a fashion that preserves the privacy of the patient to the fullest extent compatible with the prevention of a threatened danger. West's Ann.Evid.Code, §§ 1014, 1024.

299 ----

299I In General

299k15 Acts or Omissions Constituting Negligence or Malpractice

299k15(17) Practitioners Other Than Regular Physicians

> 299k15(23) Psychiatrists, psychoanalysts and religious healers.

Cal. 1976.

Psychotherapist's revelation of a patient's communications is not a breach of trust or a violation of professional ethics where such disclosure is necessary to avert danger to others; public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others since the protective privilege ends where the public peril begins. West's Ann.Civ.Code, § 1714; West's Ann.Evid.Code, §§ 1014, 1024.

81 ----

> 81k5 Powers, franchises, and liabilities in general.

Cal. 1976.

University of California, as employer of treating and supervising psychotherapists, could be held liable for the therapists' breach of duty to exercise reasonable care to protect plaintiffs' decedent from danger posed by mental patient, who allegedly confided to the therapists his intentions to kill plaintiffs' daughter. West's Ann.Civ.Code, § 1714.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Provisions of the Lanterman-Petris-Short Act governing release of confidential information did not prevent psychotherapists, who were employed by university hospital, from warning plaintiffs' daughter of mental patient's stated intentions to kill daughter; not only did treating therapist's letter to campus police to detain the patient not constitute an "application in writing," absent allegations that the therapists, the hospital or any staff member had been designated by the county to institute an involuntary commitment proceeding, there was no showing that the psychotherapy provided the patient fell under any treatment program authorized by the act. West's Ann.Welfare & Inst.Code, §§ 5000 et seq., 5150, 5328-5328.9, 6000 et seq.

299 ----

299I In General

299k15 Acts or Omissions Constituting Negligence or Malpractice

299k15(17) Practitioners Other Than Regular Physicians

> 299k15(23) Psychiatrists, psychoanalysts and religious healers.

Cal. 1976.

Detailed provisions of the Lanterman-Petris-Short Act regulating disclosure of confidential information do not apply to disclosure of information not governed by the Act; since the legislature did not extend the Act to control all disclosures of confidential matter by psychotherapist, it must be inferred that the legislature did not relieve the courts of their obligation to define by reference to the principles of common law the obligation of a therapist in those situations not governed by the act. West's Ann.Welfare & Inst.Code, §§ 5000 et seq., 5328, 6000 et seq.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Campus police, who on request of psychotherapist at university hospital briefly detained mental patient but released him when he appeared rational, did not have such a special relationship to either the patient, who informed therapist that he intended to kill plaintiffs' daughter, or to the daughter, whom he subsequently killed, so as to impose on the police a duty to warn of the patient's violent intentions; assertion of cause of action founded on absence of a special relationship would raise difficult problems of causation and public policy which were not properly resolvable on basis of conjectural facts not averred in the pleadings or any proposed amendment thereto.

283 ----

283III Rights, Powers, Duties, and Liabilities

> 283k114 Liabilities for official acts.

Cal. 1976.

Statute affording immunity to public employees in connection with discretionary acts affords immunity only for basic policy decisions. West's Ann.Gov.Code, § 820.2.

283 ----

283III Rights, Powers, Duties, and Liabilities

> 283k114 Liabilities for official acts.

Cal. 1976.

Public employees' immunity from liability for injury resulting from discretionary acts should be no greater than is required to give legislative and executive policy makers sufficient breathing space in which to perform their vital policy-making functions. West's Ann.Gov.Code, § 820.2.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Immunity of public employees from liability for injury resulting from discretionary acts did not shield psychotherapists employed by university hospital from liability for mere failure to warn either plaintiffs' daughter or those who reasonably could have been expected to notify her of apparent threats made on her life by a patient; failure to warn did not fall within zone of immunity created by the act. West's Ann.Gov.Code, § 820.2.

283 ----

283III Rights, Powers, Duties, and Liabilities

283k115 Liabilities for Negligence or Misconduct

> 283k116 In

general.

Cal. 1976.

Although statute shielding government employees from liability for results of discretionary acts does not shield publicly employed psychotherapists from liability for failure to act when a patient poses a serious danger of violence to others, the law requires of such therapist only that quantum of care which the common law requires of private therapists; imposition of liability in those rare cases in which a public employee falls short of such standards does not contravene the language or purpose of the immunity statute. West's Ann.Civ.Code, § 1714; West's Ann.Gov.Code, § 820.2.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Although psychotherapists employed by university hospital were not immune from liability for failure to warn intended victim or other appropriate persons of threats made on her life by a patient, the therapists were immune from liability for failing to confine the patient, notwithstanding that therapists were not among the persons designated in the Lanterman-Petris-Short Act as persons authorized finally to adjudicate a patient's confinement. West's Ann.Gov.Code, § 856; West's Ann.Welfare & Inst.Code, § 5150.

283 ----

283III Rights, Powers, Duties, and Liabilities

> 283k114 Liabilities for official acts.

Cal. 1976.

Phrase "any applicable enactment" as used in statute affording public entities and their employees absolute protection from liability for any injury resulting from determining, in accordance with any applicable enactment, whether to confine a person for mental illness does not refer solely to persons designated under the Lanterman-Petris-Short Act as authorized finally to adjudicate a patient's confinement but, extends, to any person authorized to request or recommend confinement. West's Ann.Gov.Code § 856.

31. OFFICERS AND PUBLIC EMPLOYEES 114

283 ----

283III Rights, Powers, Duties, and Liabilities

> 283k114 Liabilities for official acts.

Cal. 1976.

Immunity of a public entity and its employees from liability from any injury resulting from determining whether to confine a person for mental illness extends not only to the final determination to confine or not to confine but to all determinations involved in the commitment process. West's Ann.Gov.Code § 856.

283 ----

283III Rights, Powers, Duties, and Liabilities

> 283k114 Liabilities for official acts.

Cal. 1976.

Supervising psychiatrist's orders that no actions leading to mental patient's detention be taken reflected his determination not to seek confinement of the patient, who carried out his stated intentions to kill plaintiffs' daughter, and, hence, clearly fell within statutory immunity of governmental entities and their employees from liability for injury resulting from determining whether to confine a person for mental illness. West's Ann.Gov.Code § 856; West's Ann.Civ.Code, § 1714.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Treating psychotherapist's failure to overcome superior's decision that no actions leading to mental patient's confinement be taken realistically fell within protection afforded by statute immunizing government employees from liability for injury resulting from determining whether to confine a person for mental illness and, hence, the psychotherapist, who was employed at university hospital and to whom patient confided his intentions to kill plaintiffs' daughter, could not be held liable, on theory of failure to confine the patient, for daughter's death at patient's hands; same analysis applied in determining liability of psychotherapist who personally examined patient as well as the superintendent's assistant, who approved decision to arrange commitment. West's Ann.Civ.Code, § 1714; West's Ann.Gov.Code, § 856.

81 ----

> 81k7 Governing boards and officers.

Cal. 1976.

Although campus police of the University of California at Berkeley technically were not "peace officers" within meaning of mental health statute immunizing a peace officer from liability for any action by a person released at or before the end of 72 hours they were immune from liability for releasing psychiatric patient, who threatened to and who subsequently killed plaintiffs' daughter, after brief confinement during which he appeared rational; courts would not impose a duty on the officers to keep the patient confined yet denied any protection furnished by the statute immunizing those responsible for confinement. West's Ann.Welfare & Inst.Code, §§ 5008(i), 5154.

35. DEATH 93

117 ----

117III Actions for Causing Death

117III(H) Damages or Compensation

> 117k93 Exemplary damages.

Cal. 1976.

Punitive damages are not recoverable in wrongful death action; hence, such damages were not recoverable from supervising psychotherapist for overruling subordinates' recommendation for confinement of a patient, who confided his intentions to kill plaintiffs' daughter and who subsequently did so. West's Ann.Civ.Code, § 1714.

Robert E. Cartwright, San Francisco, Floyd A. Demanes, Burlingame, William H. Lally, Sacramento, Edward I. Pollock, Los Angeles, Leonard Sacks, Encino, Stephen I. Zetterberg, Claremont, Sanford M. Gage, Beverly Hills, Robert O. Angle, Santa Barbara, and Melanie Bellah, Berkeley, as amici curiae for plaintiffs and appellants.

TOBRINER, Justice.

[551 P.2d 340] rational. They further claim that Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. No one warned plaintiffs of Tatiana's peril.

In the case at bar, plaintiffs admit that defendant therapists notified the police, but argue on appeal that the therapists failed to exercise reasonable care to protect Tatiana in that they did not confine Poddar and did not warn Tatiana or others likely to apprise her of the danger. Defendant therapists, however, are public employees. Consequently, to the extent that plaintiffs seek to predicate liability upon the therapists' failure to bring about Poddar's confinement, the therapists can claim immunity under Government Code section 856. No specific statutory provision, however, shields them from liability based upon failure to warn Tatiana or others likely to apprise her of the danger, and Government Code section 820.2 does not protect such failure as an exercise of discretion.

Plaintiffs' first cause of action, entitled 'Failure to Detain a Dangerous Patient,' alleges that on August 20, 1969, Poddar was a voluntary outpatient receiving therapy at Cowell Memorial Hospital. Poddar informed Moore, his therapist, that he was going to kill an unnamed girl, readily identifiable as Tatiana, when she returned home from spending the summer in Brazil. Moore, with the concurrence of Dr. Gold, who had initially examined Poddar, and Dr. Yandell, Assistant to the director of the department of psychiatry, decided that Poddar should be committed for observation in a mental hospital. Moore orally notified Officers Atkinson and Teel of the campus police that he would request commitment. He then sent a letter to Police Chief William Beall requesting the assistance of the police department in securing Poddar's confinement.

[17 Cal.3d 433] Plaintiffs' second cause of action, entitled 'Failure to Warn On a Dangerous Patient,' incorporates the allegations of the first cause of action, but adds the assertion that defendants negligently permitted Poddar to be released from police custody without 'notifying the parents of Tatiana Tarasoff that their daughter was in grave danger from Posenjit Poddar.' Roddar persuaded Tatiana's brother to share an apartment with him near Tatiana's residence; shortly after her return from Brazil, Poddar went to her residence and killed her.

Plaintiffs' fourth cause of action, for 'Breach of Primary Duty to Patient and the Public,' states essentially the same allegations as the first cause of action, but seeks to characterize defendants' conduct as a breach of duty to safeguard their patient and the public. Since such conclusory labels add nothing to the factual allegations of the complaint, the first and fourth causes of action are legally indistinguishable.

2. Plaintiffs can state a cause of action against defendant therapists for negligent failure to protect Tatiana.

The most important of these considerations in establishing duty is foreseeability. As a general principle, a 'defendant owes a duty of [17 Cal.3d 435] care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399, 115 Cal.Rptr. 765, 776, 525 P.2d 669, 680; Dillon v. Legg, Supra, 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912; Weirum v. R.K.O. General, Inc. (1975) > 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36; see Civ.Code, § 1714.) As we shall explain, however, when the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn [551 P.2d 343] of such conduct, the common law has traditionally imposed liability only if the defendant bears some special relationship to the dangerous person or to the potential victim. Since the relationship between a therapist and his patient satisfies this requirement, we need not here decide whether foreseeability alone is sufficient to create a duty to exercise reasonably care to protect a potential victim of another's conduct.

[17 Cal.3d 436] [11] [12] Although plaintiffs' pleadings assert no special relation between Tatiana and defendant therapists, they establish as between Poddar and defendant therapists the special relation that arises between a patient and his doctor or psychotherapist. (FN6) Such a relationship may support affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise reasonable care to control the behavior of a patient which may endanger other persons. (FN7) A doctor must also warn a patient[551 P.2d 344] if the patient's condition or medication renders certain conduct, such as driving a car, dangerous to others. (FN8)

In their summary of the relevant rulings Fleming and Maximov conclude that the 'case law should dispel any notion that to impose on the therapists a duty to take precautions for the safety of persons threatened by a patient, where due care so requires, is in any way opposed to contemporary ground rules on the duty relationship. On the contrary, there now seems to be sufficient authority to support the conclusion that by entering into a doctor-patient relationship the therapist becomes sufficiently involved to assume some responsibility for the safety, not only of the patient himself, but also of any third person whom the doctor knows to be threatened by the patient.' (Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1030.)

The role of the psychiatrist, who is indeed a practitioner of medicine, and that of the psychologist who performs an allied function, are like that of the physician who must conform to the standards of the profession and who must often make diagnoses and predictions based upon such evaluations. Thus the judgment of the therapist in diagnosing emotional disorders and in predicting whether a patient presents a serious danger of violence is comparable to the judgment which doctors and professionals must regularly render under accepted rules of responsibility.

In the instant case, however, the pleadings do not raise any question as to failure of defendant therapists to predict that Poddar presented a serious danger of violence. On the contrary, the present complaints allege that defendant therapists did in fact predict that Poddar would kill, but were negligent in failing to warn.

[17] Contrary to the assertion of amicus, this conclusion is not inconsistent with our recent decision in People v. Burnick, supra, 14 Cal.3d 306, 121 Cal.Rptr. 488, 535 P.2d 352. Taking note of the uncertain character of therapeutic prediction, we held in Burnick that a person cannot be committed as a mentally disordered sex offender unless found to be such by proof beyond a reasonable doubt. (14 Cal.3d at p. 328, 121 Cal.Rptr. 488, 535 P.2d 352.) The issue in the present context, however, is not whether the patient should be incarcerated, but whether the therapist should take any steps at all to protect the threatened victim; some of the alternatives open to the therapist, such as warning the victim, will not result in the drastic consequences of depriving the patient of his liberty. Weighing the uncertain and conjectural character of the alleged damage done the patient by such a warning against the peril to the victim's life, we conclude that professional inaccuracy in predicting violence cannot negate the therapist's duty to protect the threatened victim.

Defendants further argue that free and open communication is essential to psychotherapy (see In re Lifschutz (1970) 2 Cal.3d 415, 431--434, 85 Cal.Rptr. 829, 467 P.2d 557); that 'Unless a patient . . . is assured that . . . information (revealed by him) can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment . . . depends.' (Sen.Com. on Judiciary, comment on Evid.Code, § 1014.) The giving of a warning, defendants contend, constitutes a breach of trust which entails the revelation of confidential communications. (FN12)

[19] [20] We realize that the open and confidential character of psychotherapeutic dialogue encourages patients to express threats of violence, few of which are ever executed. Certainly a therapist should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationship with his therapist and with the persons threatened. To the contrary, the therapist's obligations to his patient require that he not disclose a confidence unless such disclosure is necessary to avert danger to others, and even then that he do so discreetly, and in a fashion that would preserve the privacy of his patient to the fullest extent compatible with the prevention of the threatened danger. (See Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1065--1066.) > (FN14)

[21] Our current crowded and computerized society compels the interdependence of its members. In this risk-infested society we can hardly tolerate the further exposure to danger that would result from a concealed knowledge of the therapist that his patient was lethal. If the exercise of reasonable care to protect the threatened victim requires the therapist to warn the endangered party or those who can reasonably be expected to notify him, we see no sufficient societal interest that would protect and justify concealment. The containment of such risks lies in the public interest

[551 P.2d 348] For the foregoing reasons, we find that plaintiffs' complaints can be amended to state a cause of action against defendants Moore, Powelson, Gold, and Yandell and against the Regents as their employer, for breach of a duty to exercise reasonable care to protect Tatiana. (FN16)

Section 5150 refers to a written application only by a professional person who is '(a) member of the attending staff . . . of an evaluation [17 Cal.3d 443] facility designated by the county,' or who is himself 'designated by the county' as one authorized to take a person into custody and place him in a facility designated by the county and approved by the State Department of Mental Hygiene. The complaint fails specifically to allege that Dr. Moore was so empowered. Dr. Moore and the Regents cannot rely upon any inference to the contrary that might be drawn from plaintiff's allegation that Dr. Moore intended to 'assign' a 'detention' on Poddar; both Dr. Moore and the Regents have expressly conceded that neither Cowell Memorial Hospital nor any member of its staff has ever been designated by the County of Alameda to institute involuntary commitment proceedings pursuant to section 5150.

[23] Neither can we adopt the dissent's suggestion that we import wholesale the detailed provisions of the Lanterman-Petris-Short Act regulating the disclosure of confidential information and apply them to disclosure of information Not governed by the act. Since the Legislature did not extend [551 P.2d 349] the act to control all disclosures of confidential matter by a therapist, we must infer that the Legislature did not relieve the courts of their obligation to define by reference to the principles of the common law the obligation of the therapist in those situations not governed by the act.

3. Defendant therapists are not immune from liability for failure to warn.

[17 Cal.3d 445] [25] Noting that virtually every public act admits of some element of discretion, we drew the line in Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, between discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not. We concluded that section 820.2 affords immunity only for 'basic policy decisions.' (Emphasis added.) (See also Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1057--1058, 84 Cal.Rptr. 27; 4 Cal.Law Revision Com.Rep. (1963) p. 810; Van Alstyne, Supplement to Cal. Government Tort Liability (Cont.Ed.Bar 1969) § 5.54, pp. 16--17; Comment, California Tort Claims Act: Discretionary Immunity (1966) 39 So.Cal.L.Rev. 470, 471; cf. James, Tort Liability of Governmental Units and Their Officers[551 P.2d 350] (1955) 22 U.Chi.L.Rev. 610, 637--638, 640, 642, 651.)

[27] [28] Relying on Johnson, we conclude that defendant therapists in the present case are not immune from liability for their failure to warn of Tatiana's peril. Johnson held that a parole officer's determination whether to warn an adult couple that their prospective foster child had a background of violence 'present(ed) no . . . reasons for immunity' (Johnson v. State of California, supra, at p. 795, 73 Cal.Rptr. 240, 447 P.2d 352), was 'at the lowest, [17 Cal.3d 446] ministerial rung of official action' (Id., at p. 796, 73 Cal.Rptr. at p. 250, 447 P.2d at p. 362), and indeed constituted 'a classic case for the imposition of tort liability.' (Id., p. 797, 73 Cal.Rptr. p. 251, 447 P.2d, p. 363; cf. Morgan v. County of Yuba, supra, 230 Cal.App.2d 938, 942--943, 41 Cal.Rptr. 508.) Although defendants in Johnson argued that the decision whether to inform the foster parents of the child's background required the exercise of considerable judgmental skills, we concluded that the state was not immune from liability for the parole officer's failure to warn because such a decision did not rise to the level of a 'basic policy decision.'

We conclude, therefore, that the therapist defendants' failure to warn Tatiana or those who reasonably could have been expected to notify her of her peril does not fall within the absolute protection afforded by section 820.2 of the Government Code. We emphasize that our conclusion [17 Cal.3d 447] does not raise the specter of therapists employed by the government indiscriminately being held liable for damage despite their exercise of sound professional judgment. We require of publicly employed therapists only that quantum of care which the common law requires of private therapists. The imposition of liability in those rare cases in which a public employee falls short of this standard does not contravene the language or purpose of Government Code section 820.2.

[17 Cal.3d 448] [31] The Lanterman-Petris-Short Act, in its extensive revision of the procedures for commitment of the mentally ill, eliminated any specific statutory reference to petitions by treating physicians, but it did not limit the authority of a therapist in government employ to request, recommend or initiate actions which may lead to commitment of his patient under the act. We believe that the language of section 856, [551 P.2d 352] which refers to any action in the course of employment and in accordance with any applicable enactment, protects the therapist who must undertake this delicate and difficult task. (See Fleming & Maximov, The Patient or His Victim: The Therapist's Dilemma (1974) 62 Cal.L.Rev. 1025, 1064.) Thus the scope of the immunity extends not only to the final determination to confine or not to confine the person for mental illness, but to all determinations involved in the process of commitment. (Cf. Hernandez v. State of California (1970) 11 Cal.App.3d 895, 899--900, 90 Cal.Rptr. 205.)

Such a claim, based as it necessarily would be, upon a subordinate's failure to prevail over his superior, obviously would derive from a rather onerous duty. Whether to impose such a duty we need not decide, however, since we can confine our analysis to the question whether Moore's failure to overcome Powelson's decision realistically falls within the protection afforded by section 856. Based upon the allegations before us, we conclude that Moore's conduct is protected.

5. Defendant police officers are immune from liability for failing to confine Poddar in their custody.

Although defendant police officers technically were not 'peace officers' as contemplated by the Welfare and Institutions Code, (FN25) [17 Cal.3d 450] plaintiffs' assertion that the officers incurred liability by failing to continue Poddar's confinement clearly contemplates that the officers were 'responsible for the detainment of (Poddar).' We could not impose a duty upon the officers to keep Poddar confined yet deny them the protection furnished by a statute immunizing those 'responsible for . . . (confinement).' Because plaintiffs would have us treat defendant officers as persons who were capable of performing the functions of the 'peace officers' contemplated by the Welfare and Institutions Code, we must accord defendant officers the protections which that code prescribed for such 'peace officers.'

7. Conclusion

WRIGHT, C.J., and SULLIVAN and RICHARDSON, JJ., concur.

[17 Cal.3d 451] MOSK, Justice (concurring and dissenting).

Whether plaintiffs can ultimately prevail is problematical at best. As the complaints admit, the therapists Did notify the police that Poddar was planning to kill a girl identifiable as Tatiana. While I doubt that more should be required, this issue may be raised in defense and its determination is a question of fact.

CLARK, Justice (dissenting).

The issue whether effective treatment for the mentally ill should be sacrificed to a system of warnings is, in my opinion, properly one for the Legislature, and we are bound by its judgment. Moreover, even in the absence of clear legislative direction, we must reach the same conclusion because imposing the majority's new duty is certain to result in a net increase in violence.

STATUTORY PROVISIONS

Having a grave impact on future treatment of the mentally ill in our state, the majority opinion clearly transcends the interests of the immediate parties and must discuss all applicable law. It addicates judicial responsibility to refuse to recognize the clear legislative policy reflected in the act.

However, recognizing that some private and public interests must override the patient's, the Legislature established several limited exceptions to confidentiality. (FN2) The [551 P.2d 356] limited nature of these exceptions and the [17 Cal.3d 455] legislative concern that disclosure might impair treatment, thereby harming both patient and society, are shown by section 5328.1. The section provides that a therapist may disclose 'to a member of the family of a patient the information that the patient is presently a patient in the facility or that the patient is seriously physically ill . . . if the professional person in charge of the facility determines that the release of such information is in the best interest of the patient.' Thus, disclosing even the fact of treatment is severely limited.

[551 P.2d 357] law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families.' (Italics added.) In addition, section 5328.3 was added to provide that when 'necessary for the protection of the patient or Others due to the patient's disappearance from, without prior notice to, a designated facility and his whereabouts is unknown, notice of such disappearance May be made to Relatives and governmental law enforcement agencies designated by the physician in charge of the patient or the professional person in charge of the facility or his designee.' (Italics added.)

Not only has the Legislature specifically dealt with disclosure and warning, but it also has dealt with therapist and police officer liability for acts of the patient. The Legislature has provided that the therapist and the officer shall not be liable for prematurely releasing the patient. (§§ 5151, 5154, 5173, 5278, 5305, 5306.)

[17 Cal.3d 457] Whether we rely on the facts as stated in the complaint that Dr. Moore is a designated person under section 5150 or on the strict prohibitions of section 5328 prohibiting disclosure of 'all information,' the imposition of a duty to warn by the majority [551 P.2d 358] flies directly in the face of the Lanterman-Petris-Short act.

If the majority feels that it must impose such a dilemma, then it has an obligation to specifically enumerate the circumstances under which the Lanterman-Petris-Short Act applies as opposed to the circumstances when 'general tort principles' will govern. The majority's failure to perform this obligation--leaving to the therapist the subtle questions as to when each opposing rule applies--is manifestly unfair.

The importance of psychiatric treatment and its need for confidentiality have been recognized by this court. (In re Lifschutz (1970) 2 Cal.3d 415, 421--422, 85 Cal.Rptr. 829, 467 P.2d 557.) 'It is clearly recognized that the very practice of psychiatry vitally depends upon the reputation in the community that the psychiatrist will not tell.' (Slovenko, Psychiatry and a Second [551 P.2d 359] Look at the Medical Privilege (1960) 6 Wayne L.Rev. 175, 188.)

DETERRENCE FROM TREATMENT

SUCCESSFUL TREATMENT

Third, even if the patient fully discloses his thoughts, assurance that the confidential relationship will not be breached is necessary to [17 Cal.3d 460] maintain his trust in his psychiatrist--the very means by which treatment is effected. '(T) he essence of much psychotherapy is the contribution of trust in the external world and ultimately in the self, modelled upon the trusting relationship established during therapy.' (Dawidoff, The Malpractice of Psychiatrists, 1966 Duke L.J. 696, 704.) Patients will be helped only if they can form a trusting relationship with the psychiatrist. (Id. at p. 704, fn. 34; Burham, Separation Anxiety (1965) 13 Arch.Gen. Psychiatry 346, 356; Heller, Supra, 30 Temp.L.Q. 401, 406.) All authorities appear to agree that if the trust relationship cannot be developed because of collusive communication between the psychiatrist and others, treatment will be frustrated. (See, e.g., Slovenko (1973) Psychiatry and Law, p. 61; Cross, Privileged Communications Between Participants in Group Psychotherapy (1970) Law and the Social Order, 191, 199; Hollender, The [551 P.2d 360] Psychiatrist and he Release of Patient Information (1960) 116 Am.J. Psychiatry 828, 829.)

Given the importance of confidentiality to the practice of psychiatry, it becomes clear the duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry. Many people, potentially violent--yet susceptible to treatment--will be deterred from seeking it; those seeking it will be inhibited from making revelations necessary to effective treatment; and, forcing the psychiatrist to violate the patient's trust will destroy the interpersonal relationship by which treatment is effected.

Both the legal and psychiatric communities recognize that the process of determining potential violence in a patient is far from exact, being fraught with complexity and uncertainty. (E.g., People v. Burnick (1975) 14 Cal.3d 306, 326, 121 Cal.Rptr. 488, 535 P.2d 352, quoting from Murel v. Baltimore City Criminal Court (1972) 407 U.S. 355, 364--365, fn. 2, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Douglas, J., dissenting from dismissal of certiorari); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 711--716; Rector, Who Are the Dangerous? (July 1973) Bull. of Amer.Acad. of Psych. & L. 186; Kozol, Boucher & Garofalo, The Diagnosis and Treatment of Dangerousness (1972) 18 Crime & Delinquency 371; Justice & Birkman, An Effort to Distinguish the Violent From the Nonviolent (1972) 65 So.Med.J. 703.) (FN5) In fact precision has not even been [551 P.2d 361] attained in predicting who of those having already committed violent acts will again become violent, a task recognized to be of much simpler propertions. (Kozol, Boucher & Garofalo, Supra, 18 Crime & Delinquency 371, 384.)

Neither alternative open to the psychiatrist seeking to protect himself is in the public interest. The warning itself is an impairment of the psychiatrist's ability to treat, depriving many patients of adequate treatment. It is to be expected that after disclosing their threats, a significant number of patients, who would not become violent if treated according to existing practices, will engage in violent conduct as a result of unsuccessful treatment. In short, the majority's duty to warn will not only impair treatment of many who would never become violent but worse, will result in a net increase in violence. (FN6)

CONCLUSION

The tragedy of Tatiana Tarasoff has led the majority to disregard the clear legislative mandate of the Lanterman-Petris-Short Act. Worse, the majority impedes medical treatment, resulting in increased violence from--and deprivation of liberty to--the mentally ill.

The judgment should be affirmed.

FN1. The criminal prosecution stemming from this crime is reported in People v. Poddar (1974) 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342.

FN3. Plaintiffs' complaints alleged merely that defendant therapists failed to warn plaintiffs--Tatiana's parents--of the danger to Tatiana. The complaints do not allege that defendant therapists failed to warn Tatiana herself, or failed to warn persons other than her parents who would be likely to apprise Tatiana of the danger. Such omissions can properly be cured by amendment. As we stated in Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118--119, 113 Cal.Rptr. 102, 107, 520 P.2d 726, 731: 'It is axiomatic that if there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend.' (Accord, La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 876, 97 Cal.Rptr. 849, 489 P.2d 1113; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664, 297 P.2d 638; Beckstead v. Superior Court (1971) 21 Cal.App.3d 780, 782, 98 Cal.Rptr. 779.)

FN5. This rule derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. (See Harper & Kime, The Duty to Control the Conduct of Another (1934) 43 Yale L.J. 886, 887.) Morally questionable, the rule owes its survival to 'the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . .' (Prosser, Torts (4th ed. 1971) § 56, p. 341.) Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. (See Prosser, Supra, § 56, at pp. 348--350.)

FN7. When a 'hospital has notice or knowledge of facts from which it might reasonably be concluded that a patient would be likely to harm himself Or others unless preclusive measures were taken, then the hospital must use reasonable care in the circumstances to prevent such harm.' (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 469, 62 Cal.Rptr. 577, 580, 432 P.2d 193, 196.) (Emphasis added.) A mental hospital may be liable if it negligently permits the escape or release of a dangerous patient (Semler v. Psychiatric Institute of Washington, D.C. (4th Cir. 1976) 44 U.S.L.Week 2439; Underwood v. United States (5th Cir. 1966) 356 F.2d 92; Fair v. United States (5th Cir. 1956) 234 F.2d 288). Greenberg v. Barbour (E.D.Pa. 1971) 322 F.Supp. 745, upheld a cause of action against a hospital staff doctor whose negligent failure to admit a mental patient resulted in that patient assaulting the plaintiff.

FN9. Ellis v. D'Angelo (1953) 116 Cal.App.2d 310, 253 P.2d 675, upheld a cause of action against parents who failed to warn a babysitter of the violent proclivities of their child; Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352, upheld a suit against the state for failure to warn foster parents of the dangerous tendencies of their ward; Morgan v. City of Yuba (1964) 230 Cal.App.2d 938, 41 Cal.Rptr. 508, sustained a cause of action against a sheriff who had promised to warn decedent before releasing a dangerous prisoner, but failed to do so.

FN11. Defendant therapists and amicus also argue that warnings must be given only in those cases in which the therapist knows the identity of the victim. We recognize that in some cases it would be unreasonable to require the therapist to interrogate his patient to discover the victim's identity, or to conduct an independent investigation. But there may also be cases in which a moment's reflection will reveal the victim's identity. The matter thus is one which depends upon the circumstances of each case, and should not be governed by any hard and fast rule.

FN14. Amicus suggests that a therapist who concludes that his patient is dangerous should not warn the potential victim, but institute proceedings for involuntary detention of the patient. The giving of a warning, however, would in many cases represent a far lesser inroad upon the patient's privacy than would involuntary commitment.

FN16. Moore argues that after Powelson countermanded the decision to seek commitment for Poddar, Moore was obliged to obey the decision of his superior and that therefore he should not be held liable for any dereliction arising from his obedience to superior orders. Plaintiffs in response contend that Moore's duty to members of the public endangered by Poddar should take precedence over his duty to obey Powelson. Since plaintiffs' complaints do not set out the date of Powelson's order, the specific terms of that order, or Powelson's authority to overrule Moore's decisions respecting patients under Moore's care, we need not adjudicate this conflict; we pass only upon the pleadings at this stage and decide if the complaints can be amended to state a cause of action.

FN18. We have considered Sua sponte whether plaintiffs' complaints could be amended to assert a cause of action against the police defendants under the principles of Restatement Second of Torts (1965), section 321, which provides that 'If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.' (See Hartzler v. City of San Jose, supra, 46 Cal.App.3d 6, 10, 120 Cal.Rptr. 5.) The record, however, suggests no facts which, if inserted into the complaints, might form the foundation for such cause of action. The assertion of a cause of action against the police defendants under this theory would raise difficult problems of causation and of public policy, which should not be resolved on the basis of conjectural facts not averred in the pleadings or in any proposed amendment to those pleadings.

FN20. Section 815.2 of the Government Code declares that '(a) public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.' The section further provides, with exceptions not applicable here, that 'a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.' The Regents, therefore, are immune from liability only if all individual defendants are similarly immune.

FN23. Section 856 includes the exception to the general rule of immunity 'for injury proximately caused by . . . negligent or wrongful acts or omission in carrying out or failing to carry out . . . a determination to confine or not to confine a person for mental illness . . ..'

FN25. Welfare and Institutions Code section 5008, subdivision (i), defines 'peace officer' for purposes of the Lanterman-Petris-Short Act as a person specified in sections 830.1 and 830.2 of the Penal Code. Campus police do not fall within the coverage of section 830.1 and were not included in section 830.2 until 1971.

FN2. Section 5328 provides: 'All information and records obtained in the course of providing services under Division 5 (commencing with Section 5000), Division 6 (commencing with Section 6000), or Division 7 (commencing with Section 7000), to either voluntary or involuntary recipients of services shall be confidential. Information and records may be disclosed only: ( ) (a) In communications between qualified professional persons in the provision of services or appropriate referrals, or in the course of conservatorship proceedings. The consent of the patient, or his guardian or conservator must be obtained before information or records may be disclosed by a professional person employed by a facility to a professional person not employed by the facility who does not have the medical responsibility for the patient's care. ( ) (b) When the patient, with the approval of the physician in charge of the patient, designates persons to whom information or records may be released, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given in him in confidence by members of a patient's family; ( ) (c) To the extent necessary for a recipient to make a claim, or for a claim to be made on behalf of a recipient for aid, insurance, or medical assistance to which he may be entitled; ( ) (d) If the recipient of services is a minor, ward, or conservatee, and his parent, guardian, or conservator designates, in writing, persons to whom records or information may be disclosed, except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family; ( ) (e) For research, provided that the Director of Health designates by regulation, rules for the conduct of research. Such rules shall include, but need not be limited to, the requirement that all researchers must sign an oath of confidentiality as follows:

( ) (f) To the courts, as necessary to the administration of justice. ( ) (g) To governmental law enforcement agencies as needed for the protection of federal and state elective constitutional officers and their families. ( ) (h) To the Senate Rules Committee or the Assembly Rules Committee for the purposes of legislative investigation authorized by such committee. ( ) (i) If the recipient of services who applies for life or disability insurance designates in writing the insurer to which records or information may be disclosed. ( ) (j) To the attorney for the patient in any and all proceedings upon presentation of a release of information signed by the patient, except that when the patient is unable to sign such release, the staff of the facility, upon satisfying itself of the identity of said attorney, and of the fact that the attorney does represent the interests of the patient, may release all information and records relating to the patient except that nothing in this article shall be construed to compel a physician, psychologist, social worker, nurse, attorney, or other professional person to reveal information which has been given to him in confidence by members of a patient's family. ( ) The amendment of subdivision (d) of this section enacted at the 1970 Regular Session of the Legislature does not constitute a change in, but is declaratory of, the preexisting law.'

FN4. The burden placed by the majority on psychiatrists may also result in the improper deprivation of two other constitutionally protected rights. First, the patient's constitutional right of privacy (In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557) is obviously encroached upon by requiring the psychotherapist to disclose confidential communications. Secondly, because confidentiality is essential to effective treatment, the majority's decision also threatens the constitutionally recognized right to receive treatment. (People v. Feagley (1975) 14 Cal.3d 338, 359, 121 Cal.Rptr. 509, 535 P.2d 373; Wyatt v. Stickney (M.D.Ala.1971) 325 F.Supp. 781, 784, affd. sub nom. Wyatt v. Aderholt (5th Cir. 1974) > 503 F.2d 1305; Nason v. Superintendent of Bridgewater State Hosp. (1968) 353 Mass. 604, 233 N.E.2d 908.)

FN6. The majority concedes that psychotherapeutic dialogue often results in the patient expressing threats of violence that are rarely executed. (Ante, p. 441, p. 27 of 131 Cal.Rptr., p. 347 of 551 P.2d). The practical problem, of course, lies in ascertaining which threats from which patients will be carried out. As to this problem, the majority is silent. They do, however, caution that a therapist certainly 'should not be encouraged routinely to reveal such threats; such disclosures could seriously disrupt the patient's relationships with his therapist and with the persons threatened.' (Id.)